One line of discussion this past week has been whether it makes any kind of moral sense to think that death by chemical weapon is so much worse than death by “conventional” weapons. Video imagery captured by BBC in the aftermath of another horrific massacre in Syria yesterday throws this into stark relief. At least ten children burned to death and scores others were left with horrifying injuries after a flammable substance was dropped on a school playground yesterday.

I will put together some thoughts on why the chemical weapon taboo is so politically robust whereas an equally comprehensive norm against incendiaries has yet to emerge, but for now some points of fact about the law on incendiary weapons:

Because it was aimed at civilians this attack would likely qualify as a grave breach under Common Article 3 of the Geneva Conventions (to which Syria is a party).

Incendiaries are (perhaps unbelievably) not banned outright as are chemical weapons. However the use of incendiaries on civilians is specifically banned by the third additional protocol to the 1980 Convention on Conventional Weapons (CCW) – not to be confused with the Chemical Weapons Convention (CWC).

Syria is not a party to this treaty and not technically bound by this rule, although the ICRC customary law study seems to suggest that this rule may have passed into customary law due to widespread practice.

Human Rights Watch and some other civil society groups have proposed rules for strengthening the regulation of incendiary weapons. Rather than seeking a separate treaty ban (as with landmines or autonomous weapons) humanitarian organizations hope governments will revisit Protocol III at the upcoming Conference of States Parties to the CCW. This latest attack, which occurs with all eyes already on Syria, may strengthen that call. Notably, however, this is not the first time the Syrian regime has used incendiaries on civilians.

In terms of norms, it will be interesting to see if this new and likely-to-be-highly-publicized atrocity will shift the debate over the legal justification for intervention away from chemical weapons and onto protection of civilians per se. Clearly, the regime can and will do horrific damage even if it never launched another chemical attack, yet the focus has been on deterring further use of chemical weapons rather than deterring conventional attacks on civilians. Will this massacre make a difference in that political framing?

One “law” comment/question: I believe the grave breaches system of the 1949 Geneva Conventions does not actually cover Common Article 3. If I understand correctly, violations of CA3 were only criminalized through the Rome Statute in 1998 as “violations of the law and customs of war,” i.e. not as a matter of treaty law but of customary law (a status that CA3 has indisputably attained.)

Syria has certainly violated CA3, but can it be held _criminally_ responsible for those violations if it has not ratified the Rome Statute? I’m a little unclear on this crucial point.

TT

Apologies since this is not exactly related to the post but I’d appreciate some links or response to these questions if you know of any. I really want
to see some good Feminist analysis on this “Punishment” thing, and some
good Post-co analysis on this responsibility thing. Bombing a country
to punish it for behavior just strikes me as such a stereotypically
macho paternalistic attitude. To be honest the questions being asked
here and in some other blog posts don’t interest me at all (not to say that they are not interesting, just that they are are a bit mono-perspective). Compliance,
international norms, signaling… This is the perspective of some
Western countries on how to maintain “international order”, it does not reflect the concerns of Syrians deeply
involved with the conflict in Syria, who care more about how to protect the country. International norms and institutions are built for certain purposes and not others and are a product of certain histories and this is a really clear example. Are there any scholars who have discussed
why the US feels a sense of responsibility here, why the rest of the
world is assumed not to, and why the right to intervene without UN cover
or international consensus is seen as a sidethought. Is no one else
having alarm bells ring about parallels to the civilizing mission discourse
here? For once I am seeing the “is IR an American Science” points really
come through, it’s fine if this discipline is concerned with the questions of the leading powers, but it’s a good reminder that it shouldn’t masquerade as the politics of the world. There was a really good post on the absence of graphic
violence in IR texts earlier, and I think the selective portrayal of
which suffering matters and how it is represented are also very
important issues here. I’ve seen this line of questioning raised outside
of the academic circles but not in them, and I’m surprised by their
absence. Anyone doing contemporary work along those lines?